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2004 DIGILAW 343 (JK)

Zafar Iqbal v. State Of J. &K.

2004-12-06

S.K.GUPTA

body2004
1. One Zafar Iqbal son of Mohd Hussain was arrested and detained under Order No.PA/SO/6-10 dated 3-4-2003 made by District Magistrate, Rajouri, under section 8(1) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter for short referred to as the Act�), with a view to prevent him from indulging in anti-national activities, which are highly prejudicial to the security of the State. The petitioner has challenged the order of detention through his father Mohd. Hussain on the following grounds: 1) That the petitioner was already in custody in FIR No.416/2002 for offences under sections 3 PSA and 307/120-B/124-A/121 RPC and no application had been made for his release on bail. There being no explanation given by the detaining authority with regard to the circumstances which compelled the passing of the detention order in respect of the detenue in preventive custody, renders it unsustainable in law; 2) That the order of detention dated 3-4-2003 was communicated to the petitioner after 26 days, i.e., on 30-04-2003. Delay in execution of the detention order having not been explained sufficiently and satisfactorily is sufficient to vitiate the detention order; 3) That the detention order does not indicate the period of detention and in the absence of the details of the material placed before the District Magistrate by the sponsoring authority for subjective satisfaction to pass the order of detention also makes the said order invalid being without application of mind.; 4) That the detenue was neither furnished the copy of the dossier nor the copy of the FIR No.416/2002 and the material collected during investigation, which formed the basis of the subjective satisfaction of the detaining authority to pass the detention order and, thus, deprived him of his valuable right guaranteed under Article 22(5) of the Constitution of India to make an effective and meaningful representation to the Government/Competent Authority against his detention order. Further non-communication of the grounds of the detention in the language understood by the detenue and non-furnishing of the translated script of such documents to the petitioner amounts to breach of the procedural safeguards provided under Article 22(5) of the Constitution of India. 2. Respondents have neither filed counter affidavit despite granting opportunities nor the detention file of the detenue has been made available by the Additional Advocate General representing the respondents for the perusal of the Court. 3. 2. Respondents have neither filed counter affidavit despite granting opportunities nor the detention file of the detenue has been made available by the Additional Advocate General representing the respondents for the perusal of the Court. 3. Heard the learned counsel for the parties and also considered their rival contentions in context with the relevant provisions touching the matter in controversy. 4. The learned counsel for the petitioner submitted that the detenue was taken in custody in FIR 416/2002 on 23-12-2002 under sections 3 PSA, 307/120-B/124-A/121 RPC. The detention order was passed on 3-4-2003 but was executed on 30-04-2003 after a period of 26 days. It is not in dispute that the detenue was in custody at the time of passing the detention order. The detention order has not been executed within a reasonable time and delayed by 26 days without plausible, sufficient and satisfactory explanation. The respondents were under an obligation to explain the delay of execution of the order. 5. It is apt to point out that the object of taking the detenue in preventive custody can be achieved only if the order is executed immediately. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the satisfaction� of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. It is when the Government or its officers feel satisfied that an order under section 8(1) of the Act has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed may be stopped immediately or at the earliest. The detenue was in custody in FIR No.416/2002 when the order impugned was passed. The order of detention would be struck down as colourful in the absence of any explanation in the counter affidavit as to why it was deemed necessary to make the order even while the person was in custody. The authority, in such circumstances, cannot be said to be legitimately satisfied on the basis of his antecedents that the detenue is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. 6. The authority, in such circumstances, cannot be said to be legitimately satisfied on the basis of his antecedents that the detenue is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. 6. Obviously, the effect of the non-execution of the order immediately after it was passed by the detaining authority without sufficient explanation with regard to delay in execution of such order, renders the order invalid and vitiated. 7. A similar matter came up for consideration in LPA No.17/1999, entitled Ghulam Rasool Shah v. State and others, in which there was delay of 48 days in execution of the detention order and such delay having not been explained, the Court allowed the appeal. Again in the case Nazir Ahmad Baba v. State of J&K and ors., 2002 KLJ 630, Hebeas Corpus Petition was allowed, detention order was quashed on the ground that delay of 67 days in the execution of the detention order remained unexplained. Further the contents of the petition have not been controverted by the respondents by filing any counter affidavit, which stand admitted in law. Further, the petitioner having not been furnished with the grounds of detention in the language understood by him alongwith other material placed before the detaining authority and formed the basis of the subjective satisfaction for passing the order, further invalidates the detention order liable to be quashed. 8. The amplitude of the safeguard embodied in Article 22(5) of the Constitution of India extends not only to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language understood by the detenue. Failure to do so would amount to denial of right of being communicated the grounds and of being afforded an opportunity of making a representation against the order and, therefore, sufficient to render his continued detention illegal, as is held by the Apex Court in case entitled Powanammal v. State of Tamin Nadu, (1999) 2 SCC 413. 9. Failure to do so would amount to denial of right of being communicated the grounds and of being afforded an opportunity of making a representation against the order and, therefore, sufficient to render his continued detention illegal, as is held by the Apex Court in case entitled Powanammal v. State of Tamin Nadu, (1999) 2 SCC 413. 9. After taking stock of the facts and circumstances of the case discussed above, I am of the considered view that the procedural safeguards provided under Article 22(5) of the Constitution of India and further non-observance of the mandatory provisions of the Jammu and Kashmir Public Safety Act, 1978 makes the detention of the detenue void and that it should be quashed. Consequently, the petition is allowed and the detention order dated 3-4-2003 is, hereby, quashed. The respondents are directed to release the detenue, Zafar Iqbal son of Mohd Hussain resident of village Hasyote, Tehsil Thanamandi, District Rajouri, forthwith, if not required in any other case. Registry shall take the follow up action in the matter. Petition is disposed of accordingly.